Peremptory Challenge Not Available on Judge Who Is Reassigned
Case—C.A.

By a MetNews Staff
Writer

The Court of Appeal for
this district has ordered that a peremptory challenge to a judge be stricken
based on it having been filed one year too late.

Although Code of Civil
Procedure Sec. 170.6(2) authorizes a challenge within 10 days of a notice of an
“all purpose” assignment to a judge, and Los Angeles Superior Court Judge Ray
Hart was challenged two days after such notice, the appeals court said the
challenge was untimely, under the unique circumstances of the case.

Hart been assigned the
case in September, 2000 and had made rulings; he went on sick leave and the
case was temporailt assigned to other judges; it was then assigned “for all
purposes” to Judge Barbara Meiers, who drew a peremptory challenge from the
plaintiff; Hart returned to work and was again assigned the case; a defendant
quickly challenged him, contending a new 10-day period had been triggered.

Los Angeles Superior
Court Judge Gary Klausner, who supervises the downtown Civil Department,
shifted the case to another judge, and the plaintiff sought a writ of mandate.

It was granted Wednesday
by Div. Seven, with Justice Fred Woods writing the opinion. Woods noted that
the case was one of first impression, but the opinion was not certified for
publication.

The jurist wrote:

“Neither the statutes
themselves nor existing case law address the circumstance presented here: What
happens when a judge previously assigned to the case is absent for a time, the
case is briefly (though “permanently”) reassigned for all purposes, including
trial, and then that same judge—who had already been assigned to the
case for all purposes, including trial (thus triggering § 170.6, subd. (2) once
before)—is reassigned to the case?”

Answering the question,
Woods resolved it in favor of denying a peremptory challenge, saying:

“We find nothing in the
statutory scheme or case law to support the proposition that a party is
afforded the windfall of a second opportunity to seek the
disqualification of a judge already given an all-purpose assignment in the
case, merely because of the unique circumstances that occurred here.”

Woods observed that the
only second chance the Legislature has provided for is the right to challenge a
judge following reversal and remand.

“[W]e decline to indulge
the fiction…that Judge Hart ‘became’ a ‘new’ judge in the case for purposes of
retriggering the 15-day time limit when, after a six-day reassignment to Judge
Meiers, the case was returned to him,” he wrote.

Former Los Angeles
District Attorney Ira Reiner joined with two colleagues at Riley & Reiner,
Robert L. Clarkson and Leslie R. Smith, in arguing for the plaintiff in favor
of the writ. Court Counsel Frederick R. Bennett represented the Los Angeles
Superior Court in opposing the writ, and Bruce M. Lorman acted for the
defendant in asserting that the challenge was timely.The case is Infant
& Nutritional Products, Inc v. Superior Court, Fylling, RPI, B154321.